UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

TEXAS DEMOCRATIC PARTY; §

BOYD L. RICHIE, in his capacity as §
Chairman of the Texas Democratic §
Party; HARRIS COUNTY §
DEMOCRATIC PARTY; and §
GERALD BIRNBERG, in his capacity §
as Chairman of the Harris County §
Democratic Party, §
§
Plaintiffs, §
§ Cause No. 4:08-CV-03332
vs. §
§
LEO VASQUEZ, in his capacity as §
Harris County Tax Assessor Collector §
and Harris County Voter Registrar,and §
HARRIS COUNTY, TEXAS, §
§
Defendants. §

PLAINTIFFS’ PETITION TO ENFORCE SETTELEMENT AGREEMENT

AND
COMPLAINT FOR ADDITIONAL CAUSES OF ACTION

TO THE HONORABLE GRAY MILLER:

COME NOW Plaintiffs, TEXAS DEMOCRATIC PARTY, BOYD L. RICHIE, in

his capacity as Chairman of the Texas Democratic Party, HARRIS COUNTY

DEMOCRATIC PARTY, and GERALD BIRNBERG, in his capacity as Chairman of the

Harris County Democratic Party (hereinafter collectively referred to as “Plaintiffs”), and

complains of Defendant LEO VASQUEZ, in his capacity as Harris County Tax Assessor

Collector and Harris County Voter Registrar and HARRIS COUNTY, TEXAS

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(hereinafter referred to as “Defendants”), and in support thereof would show the Court as

follows:

I.

FACTUAL ALLEGATIONS

1. On November 10, 2008, Plaintiffs filed suit against Defendants in order to cure

serious violations of federal and state law regarding the administration of the voter

registration office in Harris County, including, but not limited to the improper denial of

approximately 65,000 voter registration applications. See Doc No. 1.

2. After discovery and depositions, the Court issued a discovery ruling limiting

access by Plaintiffs and the general public to the voter registration records. See Doc. No.

35.

3. Harris County argued that disclosure of voter registration applications and other

documents would violate the privacy of the public. See Doc. Nos. 24 and 31. It further

argued disclosure of the actual voter registration applications and correspondence with

applicants would be too burdensome. See id. As a result, disclosure of important

governmental records was impeded and such public darkness permitted an environment

where additional government misconduct would fester. Recently, Defendant Vasquez

has abandoned the arguments of privacy he presented to this Court and has provided the

very same information denied in this case to his political allies.

4. On October 22-23, 2009, Plaintiffs and Defendants attended mediation and a

settlement was reached. See Exhibit “A.” (Resolution Agreement)

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5. After receiving the settlement, this Court dismissed the case retaining jurisdiction

over enforcement of the settlement agreement. See Doc. No. 57 and 42 U.S.C. §

1973a(c).

6. The settlement was submitted to the Department of Justice (hereinafter “DOJ”) for

pre-clearance in compliance with paragraph 9 and 42 U.S.C. § 1973c.

7. The DOJ granted pre-clearance on January 21, 2010. See Exhibit “B.”

8. When the DOJ granted pre-clearance the settlement agreement became the

baseline for Section 5 analysis.

9. Despite the immediate enforceability of the settlement, the Defendants delayed

implementation of portions of the settlement until after the pre-clearance was granted.

10. Furthermore, the DOJ required Defendants to make additional Section 5

submissions. See id.

11. Upon information and belief, the Defendants did not make the additional

submissions required under the DOJ pre-clearance letter.

12. Notwithstanding the foregoing, Plaintiffs have been patient in allowing

Defendants to implement the agreement on the belief that the expressed goodwill from

Defendant Vasquez was genuine.

13. On August 24, 2010, Defendant Vasquez announced and gave a press conference

wherein he admitted to violations of the settlement agreement.

14. Released to the press and public that day was a statement by Defendant Vasquez

and alleged supporting slides. See Exhibit “C.”

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15. The August 24, 2010 event was attended almost exclusively by press and Tea

Party activists.

16. Defendant Vasquez’ written and oral statements constitute admissions that voter

registration is being handled on an unlawful basis.

17. At the August 24, 2010 event, it was revealed that Defendants had released voter

registration information and applications to the “King Street Patriots,” a Tea Party group,

for an “independent review.”

18. The documents disclosed were the same type of documents Defendants resisted

disclosing to Plaintiffs in this case and therefore was inconsistent with this Court's Order

regarding production of documents.

19. The disclosure of documents also did not comply with paragraph 7(a) of the

Resolution Agreement because upon information and belief King Street Patriots had not

obtained authorizations from the applicants at issue.

20. The disclosure of documents was also a violation of 42 U.S.C. § 1973c because it

is a change in election practices or procedures that has not been pre-cleared.

21. Disclosure of official election records on a partisan basis is unlawful. See 42

U.S.C. § 1973gg-6(i) and 42 U.S.C. § 1971(a)(2)(A).

22. At the August 24, 2010 event, Defendant Vasquez admitted to violations of

paragraph 8(c) in disclosing that 1,133 applications were rejected for the alleged failure

to provide a Social Security Number (SSN) or Driver’s License Number (DL).

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23. The practice or procedure described in the paragraph above also is in violation of

42 U.S.C. § 1973c because it is a change in election practices or procedures that has not

been pre-cleared.

24. Federal law does not require an applicant to provide their TDL or SSN to register

to vote and Defendants’ efforts to require same is unlawful. See 42 U.S.C. §

1971(a)(2)(B).

25. At the August 24, 2010 event, Defendant Vasquez admitted he was referring, for

prosecution, 1,597 persons for allegedly submitting multiple voter registration

applications.

26. Submitting multiple applications is not a crime.

27. It is to be expected that multiple applications would be submitted from a public

that is aware Defendants have systematically failed to register lawful voters over the last

several years.

28. It is to be expected that multiple applications would be submitted from a public

that is aware Defendants continuously fail to comply with election deadlines pertaining to

the timely processing of applications.

29. Multiple applications are the result of concerted efforts by citizens to obtain

registration despite Defendants’ unlawful activities.

30. Referral of these matters and others, none of which are legitimate crimes, for

criminal prosecution amounts to voter intimidation and is unlawful. See 42 U.S.C. §

1971b.

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31. Announcement of alleged criminal prosecution is designed to stifle registration

and intimidate the public.

32. Referral of these matters and others for criminal prosecution is in violation of 42

U.S.C. § 1973c because it is a change in election practices or procedures that has not

been pre-cleared.

33. At the August 24, 2010 event, Defendant Vasquez admitted applications were

rejected because of his subjective belief the applicant's signature did not match another

application or record.

34. The practice or procedure described in the paragraph above is a violation of 42

U.S.C. § 1973c because it is a change in election practices or procedures that has not

been pre-cleared.

35. Defendant Vasquez is implementing the voter registration form as an unlawful test

or device in violation of 42 U.S.C. § 1973b.

36. Defendants have failed to process applications within the timeline required by

elections laws and in violation of the Resolution Agreement.

37. Defendant Vasquez has admitted that approximately 10,000 proper and timely

received applications are pending even though the law requires they be processed in

seven days.

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38. Defendants failed to follow the dispute resolution procedure of the settlement

agreement at paragraph 6 when they enacted these voting changes in violation of the

settlement.1

39. Upon information and belief, Defendants are violating other terms of the

settlement as well as state and federal laws not mentioned herein.

40. The actions of Defendant Vasquez as described above, and others not yet

discovered, amount to contempt of the federal voting laws. See 42 U.S.C. § 1971(f).

41. On November 2, 2010, a General Election will occur.

42. October 4, 2010 is the deadline to submit a voter registration application. See

TEX. ELEC. CODE § 13.143.

43. Absent emergency relief, granted by this Court, Harris County voter registration

will be plagued with many, if not all, of the same election law violations as were

committed by Defendants in the last General Election.

II.

PARTIES

44. Plaintiff, TEXAS DEMOCRATIC PARTY, is a political party formed under the

Texas Election Code, whose address is 505 West 12th Street, Austin, Travis County,

Texas 78701.

45. Plaintiff, BOYD L. RICHIE, is Chairman of the Texas Democratic Party and a

registered voter in Young County, Texas.

1
Contemporaneous with the filing of this Petition, Plaintiffs have demanded mediation under paragraph 6 of the
Resolution Agreement. Counsel have already met and conferred under the agreement. The short time between
now and the voter registration cut-off required this suit and immediate action.
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46. Plaintiff, HARRIS COUNTY DEMOCRATIC PARTY, is a political party formed

under the Texas Election Code, whose address is 1445 North Loop West, Suite 110,

Houston, Harris County, Texas 77008.

47. Plaintiff, GERALD BIRNBERG, is Chairman of the Harris County Democratic

Party and a registered voter in Harris County, Texas.

48. Defendant LEO VASQUEZ is the Harris County Tax Assessor Collector and

Harris County Voter Registrar and may be served with process at 1001 Preston, Harris

County, Texas 77002.

49. Defendant HARRIS COUNTY, TEXAS is a political subdivision of Texas that

can be served through counsel herein.

III.

JURISDICTION AND VENUE

50. The Court has jurisdiction over this matter under 28 U.S.C. §§ 1331, 1343(3) &

(4), and 1367(a). The Court also has jurisdiction under 42 U.S.C. § 1983.

51. Venue is proper in this district under 28 U.S.C. §1391(b)(2) in that a substantial

part of the events or omissions giving rise to these claims occurred in this district.

IV.

DECLARATORY JUDGMENT/WRIT OF MANDAMUS

52. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§

2201-2202, 42 U.S.C. § 1983 and Federal Rule of Civil Procedure 65 to enforce rights

guaranteed under the Fourteenth Amendment to the United States Constitution and other

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federal and state laws. This action is brought to prevent deprivation under color of law of

the rights, privileges and immunities secured to Plaintiffs by the aforementioned statutes

and constitutional provisions.

53. This is also a request for a Writ of Mandamus to direct a state officer to comply

with his non-discretionary duties created by state and/or federal law.

V.

CAUSES OF ACTION

COUNT 1:

The Defendants’ Actions Burden the Fundamental Right to Vote

in Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution

54. Plaintiffs incorporate the foregoing by reference.

55. Defendants’ actions above violate the due process rights of Plaintiffs and the

affected voters.

56. Defendants’ actions in failing to register voters by overly technical review of voter

registration applications violate the due process rights of Plaintiffs and the affected

voters.

COUNT 2:

The Defendants’ Actions Burden the Fundamental Right to Vote

in Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution

57. Plaintiffs incorporate the foregoing by reference.

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58. Defendants’ actions described above violate the equal protection rights of

Plaintiffs and the affected voters.

59. Defendants’ actions in failing to register voters by overly technical review of voter

registration applications violate the equal protection rights of Plaintiffs and the affected

voters.

60. Defendants’ actions in releasing voter registration data under different terms to

different groups violates the equal protection rights of Plaintiffs and the affected voters.

COUNT 3:

The Defendants have Violated 42 U.S.C. § 1973gg-6(i) by

Discriminatory Compliance

61. Plaintiffs incorporate the foregoing by reference.

62. 42 U.S.C. § 1973gg-6(i) provides a requesting party is entitled to information

requested concerning voter registration procedures.

63. Defendant Vasquez has complied with this provision of the law only in so far as it

benefits his political friends.

COUNT 4:

The Defendants have and Continue to Violate

42 U.S.C. § 1971(a)(2)(B)

64. Plaintiffs incorporate the foregoing by reference.

65. Defendants deny the right of individuals to vote in elections because of an error or

omission on a record or paper relating to any application, registration, or other act

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requisite to voting, even though such error or omission is not material in determining

whether such individual is qualified under State law to vote in such elections.

66. Each of the practices described in the foregoing are designed to limit voter

registration and none are material in making the determination a person is eligible to

vote.

COUNT 5:

The Defendants have and Continue to Violate

42 U.S.C. § 1973c

67. Plaintiffs hereby incorporate the foregoing by reference.

68. This is an action under the Voting Rights Act, 42 U.S.C. 1973c (“Section 5”), to

enjoin the use of election practices or procedures not pre-cleared under the terms of the

Act. Determination of Section 5 claims requires a three-judge panel.2

69. Section 5 requires that “any voting qualification or prerequisite to voting, or

standard, practice or procedure with respect to voting” different from that in force or

effect in Houston County on November 1, 1972 may not be lawfully implemented unless

Houston County obtains declaratory judgment from the United States District Court for

the District of Columbia that the voting change does not have the purpose and will not

have the effect of denying or abridging the right to vote on account of race, color, or

membership in a language minority group, except such change may be implemented

2
Plaintiffs assume the Court's earlier constituted three-judge panel applies to this case. See Doc. No. 20. If not,
a request is hereby made to empanel a three-judge Court.
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without such judgment if it has been submitted to the Attorney General and the Attorney

General has not interposed an objection within sixty days. See 42. U.S.C. § 1973c.

70. Defendants are subject to the pre-clearance requirements of Section 5.

71. Defendants are enacting, administering or effectuating standards, practices or

procedures with respect to voting different from those in force or effect on November 1,

1972 or that were subsequently lawfully pre-cleared under the terms of Section 5.

72. Defendants’ failure to obtain pre-clearance of the changes described above renders

the changes legally unenforceable. See 42 U.S.C. § 1973c.

73. Unless immediately enjoined by this Court, the Defendants will continue to

enforce the aforementioned changes without obtaining the requisite pre-clearance in

violation of Section 5.

COUNT 6:

The Defendants have and Continue to Violate

42 U.S.C. § 1973gg

74. Plaintiffs incorporate the foregoing by reference.

75. Defendants have and continues to violate the National Voter Registration Act, 42

U.S.C. § 1973gg.

COUNT 7:

Breach of Contract

76. Plaintiffs incorporate the foregoing by reference.

77. Defendants have and continue to violate the Resolution Agreement. See Exhibit

“A.”
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78. Defendant Vasquez has violated the spirit and intent of the Resolution Agreement.

VI.

REQUEST FOR PERMANENT INJUNCTION

79. Plaintiffs incorporate the foregoing by reference.

80. After full trial on the merits, the Plaintiffs ask the Court to enter a permanent

injunction granting the relief requested herein.3

VII.

ATTORNEYS FEES

81. Plaintiffs request award of their reasonable and necessary attorneys’ fees for this

action. See, e.g., 42 U.S.C. §§ 1973l(e), 193gg-9© and 1988. See also paragraph 6 of

Exhibit “A.”

82. Defendants are not entitled to qualified or sovereign immunity because the only

relief requested herein is declaratory and/or injunctive relief, as well as an award of

attorneys’ fees and court costs.

PRAYER

83. For the foregoing reasons, the Plaintiffs respectfully request that the Court enter

judgment against Defendants consistent with the relief requested herein including but not

limited to:

a. Issue Temporary Restraining Orders and/or a Preliminary Injunction in

order to ensure compliance with election laws for the upcoming election;

3
Plaintiffs will file a separate request for emergency and injunctive relief pursuant to the Local Rules.
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b. Require expedited discovery in order to resolve issues in timely fashion, in

advance of the election; and

c. Award judgment to the Plaintiffs for all relief requested, including

attorneys’ fees.

Dated this 2ndday of September, 2010.

Respectfully submitted,

By: /s/ Chad W. Dunn

Chad W. Dunn – Attorney In Charge
State Bar No. 24036507
Southern District of Texas No. 33467
General Counsel
TEXAS DEMOCRATIC PARTY
BRAZIL & DUNN
K. Scott Brazil
State Bar No. 02934050
Southern District of Texas No. 2585
4201 FM 1960 West, Suite 530
Houston, Texas 77068
Telephone: (281) 580-6310
Facsimile: (281) 580-6362

Bryan C. Mitchell – Of Counsel

State Bar No. 24037124
Southern District Bar No. 333586
THE MITCHELL LAW FIRM
4201 FM 1960 West, Suite 505
Houston, Texas 77068
Telephone: (713) 471-5314
Facsimile: (713) 481-1708

ATTORNEYS FOR PLAINTIFFS

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 CERTIFICATE OF SERVICE

I hereby certify that on September 2, 2010, I electronically filed the foregoing

document with the Clerk of the United States District Court, Southern District of Texas,
Houston Division, using the electronic case filing system of the Court. The electronic
case filing system sent a “Notice of Electronic Filing” to the following attorneys of
record who have consented in writing to accept this Notice as service of this document by
electronic means:

F. Clinton Gambill, II
Senior Assistant City Attorney
1019 Congress, 15th Floor
Houston, TX77002
(Attorneys for Defendants)
By Electronic Notice and by Facsimile

/s/ Chad W. Dunn

Chad W. Dunn

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